Thinking and Deciding

430 FAIRNESS AND JUSTICE
great deal (if they sue), even when little deterrence results because the compensation
is paid by liability insurance.
Punishment. People often ignore deterrence in making decisions about punishment
or penalties. Baron and Ritov (1993) gave a questionnaire to retired judges,
law students, other students and other groups. The questionnaire asked respondents
to imagine that the United States had a legal system (much like New Zealand’s), in
which separate decisions were made about penalties against injurers and compensation
for victims (Baron and Ritov, 1993). In one case, a child died from a vaccine
against a disease. The disease is far more likely than the vaccine to kill the child, and
the company was not clearly negligent. The case had two versions. In one version,
“The company knew how to make an even safer pill but had decided against producing
it because the company was not sure that the safer pill would be profitable. If
the company were to stop making the pill that the woman took, it would make the
safer pill.” In the other version, “If the company were to stop making the pill that
the woman took, it would cease making pills altogether.” Of course, the deterrent
effect of the penalty in this case would be the reverse of its usual effect, because it
would provide an incentive for undesirable behavior rather than more desirable behavior.
Most of the respondents, including judges, did not think that this made any
difference. They thought that the penalty should depend on the harm done, not on
its effect on anyone’s future behavior. For example, some subjects argued, “We are
dealing with solely what happened to the woman.” “The damage was already done
to that woman.” “It should have to pay damages if it was at fault.” “[The company]
should pay for its previous actions on account of those actions.”
In another test of the same principle, subjects assigned penalties to the company
even when the penalty was secret, the company was insured, and the company was
going out of business, so that (subjects were told) the amount of the penalty would
have no effect on anyone’s future behavior. Such a situation would remove the usual
deterrent effect of penalties. Baron, Gowda, and Kunreuther (1993) likewise found
that subjects, including judges and legislators, typically did not want to penalize
companies differently for dumping of hazardous waste as a function of whether the
penalty would make companies try harder to avoid waste or whether it would induce
them to cease making a beneficial product. Some writers have suggested that
companies have in fact stopped making certain beneficial products, such as vaccines,
exactly because of such penalties (for example, Inglehart, 1987).
Subjects who want injurers to be punished even when the punishment has no
benefit could be applying a rule of retribution, a rule that prescribes punishment as
a function of the cause of the harm rather than the effect of the punishment. Such
a rule normally yields the same result as does the utilitarian deterrence principle:
Punishment for causing harm usually deters. In these cases, retribution does not
deter. Because the retribution rule and the deterrence rule normally agree, it may be
difficult for people who adopt the retribution rule ever to learn about its problems.
Other possible sources of a retribution rule may be a perception of balance or equity
(Walster, Walster, and Berscheid, 1978) and a generalization from the emotional
response of anger, which may operate in terms of retribution.